mining how much damage ought to be assessed. If these three gentlemen were the persons to whom these words were spoken, you can consider their relations to the plaintiff and the likelihood of words spoken to them concerning him reachinp; the public through their a.gency, and to what extent they would be likely to cause him injury. The plaintiff cannot claim damages for acts of his own or for the publicity given to the matter by the bringing of this suit, because that was brought of his own choice. It is for you, if you find for the plaintiff, to say upon all the facts and circumstances in proof what damages you think ought to be awarded, whether compensatory, or both compensatory and vindictive.
TILGHMAN V. WERK
August 30, 1889.)
(Uircuit Oourt, S. D. Oltio, ll7: D.
PRACTICE IN CIVIL CASES-NuNC PRO TUNC ORDER.
An application by respondents for a nunc pro tunc order dismissing complainant's petition to vacate a decree made in 1878, and for a rehearing, the application being' based on an alleged action or opinion taken or expressed by the circuit judge by whom the petition was heard in 1884, will be refused where there was no final decision or judgment rendered, and no official record on which to base such an order, and nothing but. the recollection of witnesses as to what the judge said about the case when not presiding in the court where the cause was pending,
BILL OF REVIEW-GROUNDS.
An application for a bill of review will not be granted where no actual fraud is set up. and the affidavits on which the application is baseL! show that no fraud in fact was practiced in obtaining the decree, and no error of law apparent on the face of the decree is either set up or relied on.
A change by the supreme court of its ruling on a question of law and fact does not constitute such Hew matter as will sustain a bill of review to vacate a decree of the circuit court pronounced before such change was made.
Neither will a bill of review be granted because the case was decided in the absence of counseL where the means of knowledge as to the time of hearing was within reach of counsel, and no effort was made to deceive him by the opposite party, though the petitioner may have been misled by the negligence or misinformation received from his counsel, or of those to whom the counsel had intrusted the business.
An application for a bill of review, made in 1889, on facts known by petitioners in 1881, comes too late, even if the facts constituted a good ground for relief.
In Equity. Application for leave to file bill of review. Francis 7'. Chambers and Perry &- Jenny, for plaintiff. Harmon, Colston, Goldsmith &- Hoadly and Pa:x;ton &- Warrington, for defendants.
J J. The motions madr herein by complainant and respondents should each be severally denied.
TILGHMAN V. WERE:.
9, 1878. No error of law apparent on theface ofthe decree or the record is either set up or relied npon in said petition .· The petition to vacate said decree is filed after the term at which it was .rendered, more than two years after the rendition of the decree. It is clear 'that the court has no authority or jurisdiction to set aside or vacate a decree under such circumstances and grant a rehearing,except for good cause shown, and in the absence of negligence on the part of the petitioners. The matters dehors the record which are relied upon as grounds for vacating the decree are-First, that there was an agreement or understanding between complainant's counsel and counsel for respondents that this suit should stand suspended and undisposed of until the suit of Tilghman v. Proctor (102 U. S. 707) should be decided by the supreme court of the United States, and that this understanding was without the knowledge and consent of complainant and his counsel, disregarded or ignored in taking said decree; and, secondly, that the decree of April 9, 1878, sought to be vacated, was based upon the decision of the supreme court of the United States in case of Mitchell v. Tilghman, 19 Wall. 287, holding the complainant's patent to be invalid, and that subsequently. in the case of Tilghman r Proctor, the supreme court had changed its ruling on said patent, holding the same to be valid. and that the decision in Mitchell v. Tilghman was erroneous, etc. This last decision or holding of the supreme court, it is claimed for petitioner, constitutes new matter in pais occurring since the decree, and furnished a good ground for sustaining the petition as a bill of review. 'While the suits against respondents and against Proctor and Gamble were founded upon the same patent, it is not alleged in the petition that th'01y had any connection with each other; they were separate and independent suits. Their only connection with each other rested in and upon the alleged agreement or understanding of counsel that Tilghman v. Werk should await the result of Tilghman v. Proctor. While the decision of the supreme court in Mitchell v. Tilghman may have been the real ground on which this court based its decree of April 9,1878, that fact does not appear upon the face of the decree, and the question is presented wbether a change of its ruling or decision by the supreme court on a question of law or fact, or upon a mixed question of law and fact, constitutes such new matter as will sustain a bill .of review to vacate decrees of the circuit court pronounced before such change was made. We think, upon principle and authority, this proposition cannot be maintained. The cases cited and relied on by counsel for complainant do not, in our opinion, sustain his contention. Such a rule would prolong litigation greatly, and render judicial decisions unstable in the highest degree. The weight of authority, as shown in the cases cited by' counsel for respondents, is against this position of complainant's counsel. As to the alleged agreement to suspend action in this suit until the case of Tilghman v. Proctor could or should be decided in the supreme court, the evidence introduced in support of and against said petition not only fails to establish such an understanding or agreement, but tends strongly to show affirmatively that no such agreement was made or concluded between counsel for the respective parties. '1'he cor-
respondence between those counsel,commencing with the letter of Judge Coffin to Mr. George Harding, of date January 23, 1877, and including the letters of March 25 and 27, 1878, are inconsistent, and irreconcilable with the existence of the agreement alleged. If the counsel for complainant failed to receive or to be advised of the letters written him by counsel for respondents under date of March 30, 1878, and April 3, 1878, it was the fault or neglect of those he left in charge of his office and business. The letter of March 30, 1878, from Coffin, counsel for respondents, expressly declined to stipulate for any postponement of action in or susof this suit, as proposed by Harding, and the letter of April 3, 1878, notified him as to the day and date when respondents' counsel would take action, and move the court to dismiss complainant's bill. The alleged agreement is said to have been first made in 1874. Subsequently to that this court granted respondents' application for a rehearing, and the petition admits that in 1877 complainant and his counsel knew that such rehearing had been granted. It is the duty of litigants to be in court, either in person or by attorney, when their cases are called, and to see that proper steps are taken for the protection of their rights. It is no ground for a bill of review that a case is taken up and decided in the absence of counsel. It was so decided in Quarrier v. Carter, 4 Hen. & M. 242, and Wiser v. Blachly, 2 Johns. Ch. 490. The means of knowledge as to the stepfl being taken in the suit were within easy reach of complainant and his counsel. No effort was made or device resorted to on the part of respondents and their counsel to conceal the action of the court, or to keep the other side in ignorance thereof. The proposition that complainant may rely for relief upon the negligence of or misinformation received from his counsel, or of those to whom such counsel has intrusted the care and attention to his professional business, is not sound, and is not supported by authority. Petitioner has not in and by his petition shown that proper diligence was exercised to secure or preserve his remedy by appeal, and, aside from the evidence introduced, it is exceedingly doubtful whether the allegations of his petition are sufficient upon their face to sustain the same or entitle him to the relief sought. But, for the reasons above stated, his petition should 110t be granted. It is accordingly dismissed, with costs. 3. The application of complainant, made April 11, 1889, for leave to file bill of review herein should be refused. The onlv new or additional filed is the alleged matter presented in the bill of review now asked to connection of respondent Werk with the suit against Proctor and Gamble. It is alleged that said Werk and his counsel, Collier, instigated that suit, or rather Proctor and Gamble's infringement of complainant's patent and the denial of his rights, and indemnified them in resisting complainant's claims. The·affidavits of Werk and Collier, the parties implicated in said charge, fully met and explained the same, and show that the allegation is not well founded. But, aside from that, this connection of Werk and Collier with the Proctor and Gamble suit, and the defense thereof, 'was known to complainant as early as 1881. It is now too late for him to rely upon that alleged fact. He is repelled by his laches from invok-
FEDERA.LREPOR'rER, vol. 39.
ing any relief on that ground, even jfit were otherwise a good ground. All other matters setout in the bill of review now sought to be filed are the same as those presented in and by the petition filed .in 1881, and already noticed and disposed of. Leave to file said bill of review is accordingly denied, with costs of the motion.
(Circuit CouTt, S. D. Oliio,
August 30, 1889.,
The F. Bauk offered to" collect at par" all paper sent it by complainant, "and remit" on specified dates." Complainant accepted the offer on a letterhead containing the prin ted words: "For collection, - - ; . for credit, - - - . " All paper sent nnder this agreement, was, at the suggestion of the F. Bank. indorsed. "Pay F Ennk for collection ' - - . for" complainant. The l<'. Bank thereafter to complainant that" we collect at par, and include in ourremittances everything collected to date." All paper sent by complainant was charged on its books to the F. Bank. "cash items" on transmission. and "time items" on their collection by the }<'. Ba.nk. on whose books like credit entries to complainant were made. 'W'hile complainant's cashier testified that in making such charges he understood that the F. Bank became indebted to com· plainant. he also stated that it was not intended to transfer the paper to or open a deposit acconnt with the F. Bank. Held, that the relation between the F. Bank and complainant as to paper sent by the latter was that of principal and agent, and not that of creditor and debtor.
Such relation also continued as to proceeds of such paper collected by the F. Bank.
TRUSTS-!DENTU'ICATION OF TRUST FUNDS.
Complainant can recover on the ground of a trust, from a receiver of the F. Bank, which has failed. such portion only of the proceeds of its paper sent to the F. Ban k as it shows has p'assed into the receiver's hands either in its original or some substituted form.
In Equity. Bill by the Commercial National Bank of Pennsylvania against David Armstrong, receiver of the Fidelity Kational Bank, to recover certain funds. Harmon, Colston, Goldsmith &: Hoa.dly, for complainant::J. E. W. Kittredge, Jos. Wilby, and W. B. Burnet, for defendant. JACKSON, J. The general object and purpose of the bUl in this case is the recovery of certain funds, which the complainant claims are impressed with a trust character in its favor, and which it is alleged have come into the possession of the defendant as the receiver of the Fidelity National Bank of Cincinnati. The trust character or the fund claimed is disputed, and that constitutes the real controversy between the parties to the suit. The material facts of the case,as established by tile evidence on which the questions of law arise, and the right to the relief sought depends, are